U.S. v. Garcia

Citation897 F.2d 1413
Decision Date19 March 1990
Docket Number89-2139,Nos. 89-2138,s. 89-2138
Parties29 Fed. R. Evid. Serv. 1382 UNITED STATES of America, Plaintiff-Appellee, v. Carlos GARCIA and Jose Luis Garcia, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Frederick J. Hess, U.S. Atty., East St. Louis, Ill., Laura J. Jones, Asst. U.S. Atty., Benton, Ill., James Porter, Asst. U.S. Atty., East St. Louis, Ill., for plaintiff-appellee.

Renee E. Schooley, Federal Public Defender, St. Louis, Mo., Bernard A. Paul, Marion, Ill., Bland D. Puente, Cruz Cervantes, Houston, Tex., for defendants-appellants.

Before POSNER and FLAUM, Circuit Judges, and DUMBAULD, Senior District Judge. *

FLAUM, Circuit Judge.

Carlos Garcia ("Carlos") and Jose Luis Garcia ("Jose") were convicted of a conspiracy to distribute and possess with intent to distribute in excess of 100 kilograms of marijuana. Carlos appeals the denial of his motion to suppress the evidence on the grounds that the police lacked probable cause to stop or search the truck and also that he did not consent to the search. Jose appeals the admission of co-defendant Carlos' hearsay statements and the refusal by the district court to give his theory of defense instruction. Additionally, Jose appeals his sentencing under base offense level 26 of the Sentencing Guidelines. For the following reasons, we affirm on all counts.

I.

On November 16, 1988, Carlos and Jose were traveling northbound on Interstate 57 through southern Illinois in a 1978 Chevrolet pickup truck bearing Texas license plates. Trooper Baker of the Illinois State Police was parked in his unmarked squad car at the north end of a construction zone on Interstate 57, just north of Marion, Illinois. Baker was "clocking" cars with his radar gun that were headed north through the construction zone, where the posted speed limit was 45 m.p.h. Baker clocked the pickup truck driven by Carlos traveling 50 m.p.h. through the construction zone and proceeded to pull the truck over to the side of the road. Baker approached the driver's door and spoke to Carlos. Jose was a passenger in the truck. Baker requested, in English, a driver's license and vehicle registration. Carlos produced a driver's license but was unable to produce any registration. Jose also produced personal identification upon request by the trooper but also had no registration. In fact, Carlos stated to Baker that he had borrowed the truck from a person named "McClavio" to drive to Indiana to look for work, but could not remember the last name of the person who lent the truck to him or their precise destination in Indiana. During this colloquy between Baker and Carlos, Baker observed Jose fumbling through the glove compartment in an apparent attempt to conceal something. Baker also noticed that Carlos and Jose were extremely apprehensive and nervous while they were questioned. Baker then took Carlos' license back to his squad car to write a warning ticket and to run a routine computer inquiry on Carlos.

The computer in Baker's car indicated that an individual named Carlos Garcia was a wanted escaped felon. After requesting assistance, which is customary after such a computer reply, Baker returned to the truck to verify whether the driver was the wanted felon. Upon returning to the truck, Baker observed none of the identifying tatoos of the wanted felon, as indicated by the computer response, on the driver. Baker proceeded to issue a warning ticket and asked Carlos if there were any "drugs or weapons in the vehicle." Carlos responded "no" and Baker asked, "Do you mind if I take a look?" Carlos assented to this request and Baker directed the same question to Jose. Carlos translated the question to Jose who nodded his head in affirmance. According to Baker's testimony, both men proceeded to get out of the truck and Baker asked them to wait behind the truck with his partner. Baker testified that he sought the defendants' consent to search for contraband based on a number of factors: the arousal of his suspicion by the defendants' extreme nervousness; the inability of Carlos and Jose to identify the truck's owner; Carlos' inability to give a precise destination for the trip; and Jose's furtive movements in the glove compartment.

Baker began his search on the passenger side by opening the glove compartment, where he found a message beeper. Baker continued his search by looking behind and under the truck's seats. While he was searching, additional troopers arrived at the scene. Agent Olivero joined Baker in his search. During the search, Baker's suspicions were aroused when he noticed the lack of window cranks and door handles on both doors and mismatched and ill-fitting screws that held the interior door panels in place. Determining this to be suspicious, Baker and Olivero inspected the door panels more closely. While looking through the window slot they observed grey packages wedged inside the door. Based on their visual observations, Baker and Olivero removed the driver's side door panel and found ten packages wrapped in duct tape. The packages were approximately two to three inches thick, twelve inches long, and six inches wide. Baker and Olivero opened one package with a knife and discovered marijuana. Carlos and Jose were then placed under arrest and the truck was impounded. During a subsequent search, officers also discovered marijuana concealed behind false sidewalls in the bed of the truck. A total of approximately 100 pounds of marijuana was discovered in the truck.

Carlos and Jose were taken to the Department of Criminal Investigation where they were given their Miranda warnings. They were given their rights orally in English and also on a waiver form with the rights written in both English and Spanish. Carlos read and signed the Miranda waiver form on both the English and Spanish sides. Jose refused to sign the waiver, but initialed each paragraph indicating he read them. Jose was not questioned but Carlos agreed to discuss the marijuana. Carlos' oral statements were drafted into written form by Agent Key. This written statement was read and signed by Carlos.

After his arrest, Carlos cooperated with the law enforcement agencies by telephoning his Indiana contacts and informing them he had truck difficulties in Illinois. This eventually led to the arrest of his contacts. The following day, on November 17, 1988, a stolen vehicle report was filed by McClavio Pena reporting the 1978 Chevrolet pickup truck as stolen. However, no one attempted to recover the truck after it was seized by the Illinois State Troopers even after Officer Key contacted a woman at McClavio's house.

Carlos and Jose were charged with conspiracy to distribute and possess with intent to distribute marijuana in excess of 100 kilograms in violation of 21 U.S.C. Secs. 841(a)(1), 846. Carlos made a motion to suppress the evidence seized from the truck along with statements he made subsequent to arrest claiming the troopers had neither probable cause nor consent to search the truck. The district court denied this motion finding Carlos gave knowing and intelligent consent, and that under the totality of the circumstances his consent was voluntary. The court also found that the scope of the search did not exceed the consent given. Carlos then pled guilty, but reserved his right to appeal the denial of his motion to suppress.

Jose proceeded to trial. At trial, Carlos asserted his fifth amendment right and refused to testify. Based on his refusal to testify, the trial court found Carlos to be an unavailable witness and allowed the government to introduce his oral and written statements made to the police under the hearsay exception for statements against interest. The jury returned a guilty verdict against Jose. Prior to sentencing, Jose filed objections to the Sentencing Guideline calculations contained in the presentence report, specifically the calculation of the appropriate base offense level as 26. A hearing was held and all of Jose's objections were overruled. Carlos was sentenced to seventy-eight months of incarceration to be followed by four years of probation. Jose was sentenced to eighty months incarceration also to be followed by a four-year probation period. Both defendants appeal.

II. Carlos Garcia's Claims
A. Standing

In the district court, and on appeal, the government alleged that Carlos lacked standing to contest the legality of the search and seizure. The government asserted that Carlos had neither a legitimate nor a reasonable expectation of privacy in the vehicle he was riding in because the truck was reported stolen. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979) (quoting Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516-17, 19 L.Ed.2d 576 (1967) (to have standing, one must have a legitimate expectation of privacy in the area searched and that expectation must be objectively reasonable)). The trial court agreed with the government and held that Carlos lacked standing to challenge the search, but nevertheless reached the merits of his claims.

After noting that the issue of standing to challenge the search of a stolen vehicle has not been addressed by the Seventh Circuit, the district court reached its conclusion by finding that while defendants may have had a subjective expectation of privacy, it is not an expectation that society is prepared to recognize as reasonable. The court based its decision, in part, on a determination that the defendants could not persuade the court that they were exercising exclusive control over the truck with the owner's permission, in light of the stolen vehicle report and the defendants' inability to remember the owner's last name.

In determining that persons present in stolen cars do not have a reasonable expectation of privacy in those cars, the trial court relied on the Supreme Court's statement in Rakas v. Illinois, 439 U.S. 128, 141 n. 9, 99 S.Ct. 421,...

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